In its denial, the Commission reasons that it put interested parties on notice more than a year ago and that there has been a great deal of public discussion about how it should approach a broadband privacy rulemaking. While true in theory, many broadband providers anticipated this would be an objective proceeding designed to address consumer privacy and apply equal, harm-based protections across the broadband ecosystem. In practice, it is unreasonable to think that broadband providers could have anticipated the extremely broad application of the proposed rules, or the more than 500 questions for comment, including whether multiple privacy regimes should be harmonized.

The Commission also relies on arguments made by broadband providers and their associations to the DC Circuit Court of Appeals that it should have stayed the Open Internet Order because providers needed more certainty and clarification from the FCC on how it would apply a statutory provision designed for telephone service to the Internet. In other words, the Commission says, “you asked for it.” It is true that broadband providers need clarity in what the rules will be that the Commission will enforce (although it is clear that the Commission doesn’t think they need rules to bring enforcement actions). However, there is still a need for an open and objective process to determine what those rules will be, with time to develop a complete record.